fairuse

For our third entry this week, we are excited to feature Prof. Niva Elkin-Koren, Faculty of Law at the University of Haifa, Israel and founding director of the Haifa Center for Law & Technology.

Fair Use: Rights Matter

Fair use is often celebrated as essential for access to knowledge (A2K), and the wide adoption of fair use is often viewed as key to its success. The flexibility rendered by this open norm has certainly enabled courts to adjust exceptions and limitations in a rapidly changing world. Many countries worldwide are seriously considering adapting more flexible norms to address these challenges. However, fair use in and of itself might be insufficient to counterbalance the emerging challenges to open access. We have reached a point where many of the threats to access we face nowadays lie beyond copyright. We might be entering a phase where copyright is taking a back seat, making room for more powerful mechanisms which govern access to cultural works. In light of these changes, a more comprehensive approach to user rights might be necessary.

New challenges to A2K

The rise of cloud computing and mobile Internet has transformed the delivery of content from the sale of copies to the provision of services. Rather than buying books, CDs and DVDs, we are now offered access to eBooks, all-you-can-eat online music subscription and movie streaming services for a monthly fee. The shift from copies to services places control over content in the hands of the service providers. Users lack perpetual control over physical copies. Restrictions on copying, playing and re-mix are set by design, and overall, access to content may expire at any time. A striking example of the lack of user control over a purchased digital copy is the Orwellian 1984 saga in which Amazon.com remotely removed from Kindle purchased copies of George Orwell’s book 1984 due to some copyright concerns. Following a public outcry, Amazon.com apologized and later settled a class action brought against it for violating its terms of service by its remote deletion.

The legal restrictions set by copyright are now supplemented by contractual restriction and control by design. The scope of permissible uses in content is increasingly set by Online Intermediaries Terms of Use (ToU) and End User License Agreements (EULAs). Contractual terms may restrict the right to resell digital copies, limit the right of perpetual use, set limits on educational use, or prohibit reverse engineering, remix, and e-lending by libraries.

Much of online copyright nowadays is enforced by online intermediaries and embedded in their design. Algorithms filter, block, and disable access to allegedly infringing materials. Ubiquitous practices of monitoring and automated filtering by online platforms create further layers of protection which may threaten access to knowledge. Some platforms (such as YouTube) have even turned this into a business model (like Content ID). The choices made by the online intermediaries on filtering, removing, disabling uses or blocking access to online materials lack any transparency and legal oversight. There are numerous anecdotal examples of erroneous removals and blocking access to non-infringing materials (false positive), but its overall scope remains unknown. Clearly however, the removal of non-infringing materials, which might be legitimately used without needing a license, threatens access to knowledge. The robustness of algorithmic filtering, removal and blocking practices is effectively changing copyright default. If copyrighted materials were once available, unless proven infringing, materials detected by the algorithm are now unavailable unless explicitly authorized by the copyright owner.

Overall, these developments in law, design and business models limit the freedom of users to access, experience, transform and dispose of copyrighted (and non-copyrighted) materials.

Is fair use sufficient?

The fencing of cultural works by licenses and algorithms call for a different approach to addressing the freedom of access protected under fair use.

Some courts have a taken a rather narrow approach to fair use, viewing it merely as a legal defense. Fair use as a “defense” authorizes the court to avoid rigid application of copyright exclusive rights, and to hold an otherwise infringing use as non-infringing in particular circumstances. Consequently, fair use may only come into play when a copyright infringement claim is made by copyright owners. Yet, in the emerging environment of licenses and algorithms, copyright is neither the problem nor the solution. Fair use as a legal defense is mostly irrelevant to many of these legal frameworks, and consequently the Legal Defense Approach to fair use might be insufficient to counterbalance these developments.

Others perceive fair use not simply as a legal defense but as an integral mechanism set forth by copyright law to achieve its goals. From this perspective, fair use doctrine critically limits the scope of the monopoly granted to authors under copyright law. It is set to identify the circumstances where unlicensed use should be permissible in order to promote the goals that copyright law seeks to achieve. Consequently, uses that fall under fair use are not simply non-infringing but in fact are desirable, therefore permissible. The right to perform these uses without a license derives from copyright intended goals.

A User Rights Approach to fair use presumes that incentives to authors provide only one means of promoting creativity, while other, equally important mechanisms focus on securing adequate access rights for users. Put differently, the rights of authors (for incentives or just reward) and the rights of users to use creative works (e.g., read, learn, disseminate, re-use and transform) are different mechanisms for promoting copyright goals.

User rights: a global view

User rights were first explicitly recognized by the Supreme Court of Canada in 2004, in the landmark case of CCH Canadian Limited. v. Law Society of Upper Canada. This approach was recentlyreaffirmed in a series of copyright decisions. The Canadian Supreme Court, citing with approval Professor David Vaver, explained: “Users’ rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that benefits remedial legislation”.

In Israel, which only recently introduced fair use into the statute with the 2007 Copyright Act, the issue of user rights has already been tackled by the Israeli Supreme Court. Initially, in 2012 the Court explicitly rejected the position that fair use is a user right. The Football Association Premier League Ltd v Anonymous (2012) involved a petition to unmask the identity of an anonymous user who streamed infringing broadcasts of football matches owned by the English Premier League. Even though the petition was dismissed on procedural grounds, the Court held that streaming constituted copyright infringement and fair use did not apply. In rejecting the User Rights Approach the Court explained that fair use should be understood as simply a legal defense.

Soon after, in Telran Ltd. v Charlton Communications (2013), the Court questioned this approach. The case involved the legality of marketing decoding cards which enabled Israeli customers to decode the encoded broadcasts of the World Cup games, which were transmitted by foreign channels via satellites. The Court held that merely distributing the decoding cards did not amount to a copyright infringement, nor was it a contributory infringement, since simply watching copyrighted materials did not constitute copyright infringement. The Court explicitly rejected the fair use Defense Approach of the Premier League Court, noting that fair use is not merely a technical defense to copyright infringement but a permissible use. A few weeks later, in the case of Safecom v Raviv (2013), the Supreme Court reaffirmed this approach in a case addressing the copying of drawings of a functional electric device in a patent application submitted to the USPTO. The Court cited with agreement the user rights approach upheld in Telran and suggested that the time was ripe for holding an extended judicial panel on that matter.

These recent developments in Canada and Israel suggest that the legal status of fair use might have far-reaching consequences. Canadian copyright law includes fair dealing provisions, which are far more limited than fair use. Under fair dealing the use not only has to be proven fair, but must also fall under one of the strictly defined purposes enumerated by law. The Supreme Court of Canada held that since fair dealing was a user right “it must not be interpreted restrictively.” Accordingly, the Court broadly interpreted research, under fair dealing, as also covering sampling during consumer research, and private study as also including copying by teachers.

The Israeli adjudication on user rights suggests that simply introducing into the statute a fair use provision is not the final end of copyright reform. It is rather the beginning of an ongoing struggle to safeguard unlicensed use that is deemed necessary to the very creativity which copyright law is designed to foster.

Future challenges

One of the greatest challenges to access to knowledge in the 21st century is private ordering. Terms of use, restrictions by design and robust algorithmic enforcement threaten to wipe out many of the safeguards of access created by fair use.

The User Rights Approach to fair use could help set limits on private ordering. Under this approach, limits on fair use fall beyond the bundle of rights defined by copyright, and therefore cannot be unilaterally restricted by a license. A User Rights Approach to fair use may also affect the corresponding duties of content providers and online intermediaries, offering a legal framework for invalidating terms of use that unfairly restrict fair use and fundamental freedoms.

Overall, a User Rights Approach to fair use may offer more robust safeguards of users’ liberties in the digital ecosystem. Making fair use more universally adopted might be a good cause. But without strengthening the legal status of fair use, and developing a jurisprudence of fair use rights, we may end up fighting the battles of the past.

For our second entry this week, we are excited to feature KevinSmith, Director of Copyright and Scholarly Communication in the Office of Copyright and Scholarly Communication at Duke University.

What Does Fair Use Taste Like?

Will Cross, a colleague from the NCSU Libraries who teaches a graduate course on legal issues with me, frequently refers to the analogy for fair use that he learned as a law student at the University of North Carolina from the legendary Laura Gasaway – fair use is like soup. It sounds strange, doesn’t it? How could such an abstract and contested legal concept be anything like a warm and comforting bowl of soup? But there is real brilliance in this analogy.

One of the difficult things about explaining fair use is convincing people that it is a balancing test. It is not a checklist, where each factor must add up on the same side of the ledger to either confirm or exclude fair use. It is perhaps the least mechanical, the least “bright line” rule found in our law. And yet it works. And it works because it is like soup.

When an experienced chef is making soup, there are certainly things she has learned that do not change – 5 cups of broth for a pound of meat, sauté the onion first, add a small handful of oregano. But a lot of the process of putting those ingredients together is instinctual, if you will, or learned from experience. Add the salt and taste. Too much? A little more broth will balance it out. In short, making soup means taking the known ingredients, blending them together, and seeing if it tastes right.

With fair use we have a statutory list of four factors. They really tell us what the important facts are: where we should look, when evaluating a particular use, for the ingredients that go into the fair use soup. When we have gathered our ingredients – all the circumstances that describe the purpose of the use, the nature of the original, the amount used, and the impact on the market for the original – we are to look at the whole picture and decide if it looks fair. According to the Supreme Court in Campbell v. Acuff Rose, the factors are “explored and weighed together, in light of copyright’s purpose.” Does the soup taste right? If not, there are adjustments the user can make – a little less on the amount, a bit more of transformation (i.e. critical commentary). The goal is to get to the place where all the ingredients (the specific circumstances) blend together and the soup tastes like fair use. If this sounds subjective and uncertain, it is. But the analogy reminds us that we deal with uncertain judgments all the time, and experience teaches us to exercise good judgment, when we cook and when we assess fair use.

I have belabored this analogy because I find it so useful when thinking about fair use decisions. Consider the decision from the 7th Circuit Court of Appeal in Kienitz v. Sconnie Nation. That case involved a pretty straightforward transformative fair use issue, but it just did not taste right to the judge who wrote the ruling. The crux of the matter was that the mayor of Madison, Wisconsin wanted to stop a famous and irreverent block party that has been going on for years, and at which the mayor himself was apparently a reveler when he was a UW student. A local printing company printed t-shirts that lampooned the mayor for his change of heart, using a photograph of the mayor taken by Mr. Kienitz with the motto “Sorry for Partying” superimposed. The photo (it was, of course, the photographer who sued) was substantially altered for the image on the t-shirt, although the printer readily acknowledge that he had used the picture.

In finding that this was a fair use – a result dictated by lots of precedents – Judge Frank Easterbrook takes an odd approach. The key ingredient in this case, one would think, would be transformation. But Judge Easterbrook apparently dislikes transformation in the fair use soup (I feel the same way about okra). So although he acknowledges that the Supreme Court “mentions” the role of transformation, he dismisses it as a question for the case before him. In the process he also questions the well-known Bill Graham Archive v. Dorling Kindersley case from the 2nd Circuit, even though both cases seem right on point for Kienitz. Judge Easterbrook is just determined to not have transformation in his fair use soup, no matter how much the facts force that ingredient on him. Instead he hangs the bulk of his finding on two of the fair use factors – amount used and impact on the market – and dismisses the other two – purpose of the use and nature of the original – because they “don’t do much in this case.” This is a remarkable statement, since purpose of the use is often considered the most important factor (within the analysis of transformation), and the nature of the original (a portrait photograph) really is relevant in this controversy. But they are not ingredients that Judge Easterbrook can stomach, so he leaves them out of his soup.

The reason I find this case remarkable is, first, because Judge Easterbrook gets to the right result through very poor reasoning (see reactions to the decision here and here). But also because it illustrates the soup-like flexibility of fair use. If one ingredient in the analysis in not to the taste of a judge, he or she can try something different. There are lots of ways to find fair use, and lots of paths open to those who would practice it. That is the beauty of a balancing test, whether tasting the soup to see if it is good or balancing the factors to see if a use is fair. When users are contemplating a use, they can adjust the facts – the ingredients – until the balance seems right.

Of course, in many cases fair use claims are unquestionably palatable. The late Judge Baer, in his decision in Authors Guild v. HathiTrust, clearly enjoyed the taste of Hathi’s fair use claim when he wrote “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants…” That decision was largely upheld by the Second Circuit Court of Appeals, the same Circuit whose taste in fair use Judge Easterbrook questions in his Kienitz decision.

All this raises a troubling question. Is fair use really just a matter of taste? Is a balancing test really as subjective as the soup analogy suggests? I think the answer is that it is not. For one thing, it is worth noting that Judge Easterbrook does not really jettison the question of transformativeness, in spite of the language of his opinion. Rather, he slips transformation into his soup in an unusual way, through the fourth fair use factor. When he finds that the t-shirts are “no substitute for the original photograph,” he is really saying that the original has been transformed in a way that serves a new purpose and creates a new meaning. He may not like the taste of the transformation analysis, but he cannot, and does not, wholly exclude it from his recipe. I think this illustrates an important general point about fair use. The factors are pointers that direct us to examine specific facts related to the proposed use. So we know what the ingredients are. And we balance those ingredients to achieve a specific “taste” – a use that serves rather than undermines the constitutionally-stated purpose of copyright. So we know the list of ingredients that go into fair use, and we know the overall “flavor” we are seeking. With those parameters in mind, we all have the opportunity to cook up a tasty batch of fair use soup.

Kevin Smith is Director of the Office of Copyright and Scholarly Communications and is both a librarian and an attorney experienced in copyright and technology law. He also serves as a nationally recognized resource on local and national policy in order to help the Duke community stay informed and involved with the changing landscape of scholarly publication. You can read his regular blog here. His latest book is Owning and Using Scholarship: An IP Handbook for Teachers and Researchers (2014).

“Copyright, Fair Use, and a Touch of Aristotle”

Commentary and events about fair use justly abound, but fair use does not exist in isolation. It is not compressed into one celebrated week. It never stands alone. And it is integral to the functioning of copyright law. Fair use responds to changing demands, and by its nature fair use is pulled into the deep uncertainty brought on by expanding innovation.

Start with copyright’s basic premise. Copyright is fundamentally a system of legal rights, granted initially to authors, authorizing control of certain uses of creative works. The basic legal rights are familiar. Copyright owners have rights of reproduction and distribution of copies; rights to make derivatives or adaptions; and rights to make public displays and performances. For some works, moral rights also apply.

The rights of copyright owners are far from absolute. They are subject to a variety of conditions and limitations, starting with the fact that copyrights expire, allowing works to enter the public domain. Copyrights may last for many decades, but the eventual expiration of copyrights is essential to the central purpose of the law: To encourage creativity. By granting rights, the law encourages authors to create new works. By assuring a public domain, the law boosts the next generation of creative ventures.

Copyrights are also limited by a long list of statutory exceptions. The public domain is broad, but it can be far in the future. By contrast, exceptions apply from the outset of the copyright, but they are of narrow scope. Fair use is one such exception. Fair use permits all of us to make uses of copyrighted works, but only within the framework of the four factors in the statute. The meaning of the factors is wide open to debate, but they ultimately set parameters on the amount, purpose, and other conditions for proper use.

What about that vacuum, you ask? Already we can see two ways that fair use and vacuums don’t jibe. First, fair use does not live alone. It is one of many statutory exceptions. The U.S. Copyright Act has exceptions for teaching, libraries, services for the blind, music recordings, satellite transmissions, and more. Indeed, a proper evaluation of fair use often means looking first for a specific statute that might meet your needs.

Fair use is also not in a vacuum for a more conceptual reason. Fair use may be about public rights, but its significance derives from private rights. The law grants private rights to authors for the benefit of private parties, but also for a public benefit. All members of the public benefit if we are motivated to craft new artworks, formulate new software, compose new music, or roll out imaginative novels and movies. At the same time, many of these new works build upon previous copyrights. By allowing fair use of works that came before, and of our new works, the law is sanctioning the building block of further aesthetics, storytelling, computer innovations, and even parody. Fair use is an essential complement to the rights of owners, and it completes the circle of creative incentives.

Finally, fair use abhors a vacuum as a byproduct of its inherent versatility. Fair use is the go-to statute for creative exploits. Congress deliberately devised a fair-use law that could apply to all media, all types of works, and all innovative pursuits. It clearly establish limits on amount, purpose, and other conditions, but fair use at least allows some degree of use as we experiment with unanticipated technologies, formats, and objectives.

Only recently have courts told us that fair use allows low-resolution images in a study of music history, or permits storage of digital books for research indexing and access for the blind. Courts have resolved that posting videos on YouTube for public criticism may be allowed. Using a politician’s photograph for political commentary can be fair use, and so can the use of video clips from commercial broadcasters, especially when the selections are limited and the purpose is to facilitate political and social critiques.

As the media and substance of creativity expands, so does the reach of fair use. The outer boundaries of technology are accelerating swiftly away from copyright’s familiar home. As innovation open up vast areas of untested space, so will fair use be absorbed into the new realm. The new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success. Without fair use we would have no troves of digitized research collections from Universities, and we would be denied the biting insights that pour forth from South Park or The Daily Show.

The human drive for innovation will always grasp new opportunities that emerge with technological expansion. Because fair use is flexible, it is able to be drawn into the vacuum of that new space. Because fair use is integral to copyright in general, when it melds into the vastness of innovation it also helps protect rights, encourage authors, and promote the progress of public and private interests.